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Thomas
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Category: UK Immigration Law
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I work away on a 28 day on, and a 28 day off roster. My girlfriend

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I work away on a 28 day on, and a 28 day off roster. My girlfriend is a British citizen, and will be residing in the UK. I will move through the process as a non-EEA national to obtain a Residence Card. With this Residence Card, I can now legally reside in the UK.

For my 28 days off, me and my partner will visit other EU countries on holiday. I will probably be physically present in the UK for less than 91 days of the year, even though my home/habitual abode/'center of vital interests' as it were, will be in the UK.

To the letter of the law, I pass the automatic overseas test #3, and am classed as non-tax resident.

However - how does this affect my standing in obtaining permanent residence after 5 years? Apparently, continuity of residence is not affected by:
* temporary absences (less than 6 months a year)

However, I will be physically absent from a country for a minimum of 6 months in a year through work, and more-so through holidays.

This seems to suggest I can never be a legal permanent resident, even though it will be my habitual abode.

How would I manage this situation?
Submitted: 1 year ago.
Category: UK Immigration Law
Expert:  Thomas replied 1 year ago.
Hi

Discounting the time spent outside the UK with your job, how much time per year would you spend outside the uk?

Tom
Customer: replied 1 year ago.

Depends on how much we holiday (I took this position to travel more). I imagine between 3-4 months. 2-3 months I'll come home to our house in the UK. And the other 6 I am away working.

Expert:  Thomas replied 1 year ago.
Hi,

Sorry I just have a quick meeting unfortuantely.

I will be able to answer in about 20-30mins..

Tom
Expert:  Thomas replied 1 year ago.
Hi,

Sorry, I see that your girfriend is a UK citizen.

What nationality are you?

If non-EEA (as it appeasr you have stated), how is it that you intend to apply for an EEA Residence Card as the Non-EEA unmarired partner? Do you intend to apply under the surinder singh ruling?

Tom
Customer: replied 1 year ago.
Thanks Tom.

I am Australian.

In order to avoid the British 'Partner and Family' Visa, we will first reside in Ireland, and obtain the EEA Residence Card there. After my girlfriend (British citizen) has worked there for a short time, we'll move to the UK. As you stated, the ruling with Singh will allow me to apply via the EEA2 form, and obtain my Residence Permit under EU law.

We have a 'durable relationship' as it were. We have been living together for greater than 2 years.

Thanks.
Expert:  Thomas replied 1 year ago.
Hi

Thanks for your patience.

I see, thank you for confirming. Not may people know of the Surinder Singh ruling and the rights it affords, so thought it best to check.

I’m afraid that under your present plans I cannot see that the UKBA would grant you Permanent Residence as the non-EEA spouse of an EEA national.

In order to qualify to apply for PR you must have had continuous residence in the UK for a period of 5 years. The UKBA’s policy on time outside the UK during this is that provided that you have not spent more than 6 months outside the UK in any 12 months period then your “continuous residence” is maintained and you will remain eligible for Permanent Residence.

The UKBA does have a very small discretion to write off small periods of time exceeding the 6 month period where the sole reason was for work purposes. The difficulty with your position is that we are not talking about small periods. The amounts in excess of the six month periods are going to be substantial.

On this basis I really cannot see the UKBA regarding these as small periods of time on which they would exercise discretion to write off.

Unless your times outside the UK come down to much nearer the 6 month period I find if very difficult to see how the UKBA would regard your times in the UK as continuous residence for the purpose of applying for Permanent Residence.

It is frustrating when you consider the interrelation with tax treatment but the immigration rules stand independently of the tax rules.

Please remember to RATE my answer OK SERVICE, GOOD SERVICE OR EXCELLENT SERVICE or above if you are satisfied that you have received the correct legal advice (even if it is not the answer you wanted to hear), otherwise I do not receive any credit for answering your question.

If you are not willing to rate my answer as OK SERVICE, GOOD SERVICE OR EXCELLENT SERVICE then allow me to assist further by replying asking what clarification you require rather than rating my answer at levels below.

If you wish for me to provide you with further guidance on any question you may have in the future then please submit a further question to the board requesting me either by my profile or by marking your question. “FAO Tom”.

Kind regards,


Tom
Customer: replied 1 year ago.
And this is even the case if it is not continuous? Being out for a month, and then return for a month?

What about the 5 year residence card? I should be able to apply for that? And then what happens after 5 years? According to EU law, I automatically obtain permanent residence - I don't necessarily need the permanent residence card.
Expert:  Thomas replied 1 year ago.
Hi,

The criteria is that in order to qualify for PR you must not be outside of the UK for more than 6 months in any 12 month period. This is confirmed here:-
http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/eea/eea41.pdf

Please refer to the final sentence contained in the paragraph immediately under Section 8 on page 22.

On the basis that your contract is 28 days on / 28 days off then provided you were to return to the UK immediately when your shift finsihes then you would be squeeze past the 6 month requirement, so on this basis (although it's really not ideal) you should probably be okay to get your residence card.

You are correct that there is no requirement to actually apply for PR. The application that you make for PR is simply confirmation of PR, rather than actually receiving it as a result of the application itself. However, teh automatical receipt of PR is nevertheless subject to the time outside requirement.

This is to say that if questions were raised about your immiigration status you would say "No, I've automatically qualifed for PR because of my 5 years", to which the UKBA would reply "no, you have not automatically qualifed for it because of your time outisde the UK". They would be correct I'm afraid.

Please remember to rate my answer.

Kind regards,


Tom
Customer: replied 1 year ago.

Residence Card and Permanent Residence are different correct?


 


Can you see any issue being on a Residence Card and having this pattern of travel?

Expert:  Thomas replied 1 year ago.
Correct.

The residence card is what you get before you qualify for PR.

PR is what you get once you have spent 5 years continous residence in the UK and is a right to remain indefinately in the UK regardless of your relationship to an EEA nationa.

The above passage of my most recent answer begginning "On the basis that.." was dealing with your application for a residence card.

Please remember to rate my answer.

Kind regards

Tom
Customer: replied 1 year ago.

In all my research I did not find any stipulation on time for a Residence Card?


 


Only for the PR did I find this issue with absence.

Expert:  Thomas replied 1 year ago.
Hi,

Apologies, there is no reference to time in the Regulations, having rechecked. My mistake.

Please rate my answer.

Tom
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